Kean v. Chenault

• Decision Date: 21 May 1897
• Parties: KEAN v. CHENAULT.
• Court: Kentucky Court of Appeals

41 S.W. 24

KEAN v. CHENAULT.

Court of Appeals of Kentucky.

May 21, 1897

Appeal from circuit court, Powell county.

"Not to be officially reported."

Action by E. C. Chenault against H. F. Kean, receiver of the Kentucky Union Railroad Company, for the negligent killing of a horse. Judgment for plaintiff. Defendant appeals. Affirmed.

Arthur Carey, for appellant.

J. D White, for appellee.

PAYNTER J.

The plaintiff, Chenault, brought this action against Hamilton F Kean, receiver of the Kentucky Union Railroad Company, for the negligent killing of a horse. The evidence conduces to show that a boy was driving the horse that was killed together with some other horses, loose in an uninclosed pasture through which the railroad passed. The horses were running, some distance ahead of the boy, in the field diagonally towards the private crossing of plaintiff. When they were discovered by the engineer, they were about 300 yards from the track. Within 10 or 15 feet of the engine this horse leaped upon the track at the crossing, and was killed. The pasture seems to have been level from the point at which the horse was running to the crossing. The train was running at the rate of 35 miles per hour. It was utterly impossible, after the horse had jumped upon the track, for the engineer to have stopped the train, so as to have avoided the killing. This court has frequently adjudged that an engineer's first duty is to the persons on his train, and to secure their safety; that it is not his duty to look out and see animals straying at all distances on each side of the track, in order to prevent injury to such animals. He is required to see such as are actually on the track, or in such an attitude or dangerous proximity as to induce a person of ordinary care and prudence to believe there is danger of a collision. See Railway Co. v. Bagby (Ky.) 29 S.W. 320, and Gordon v. Railway Co., Id. 321. Had the horse jumped upon the track in front of the engine, so that the accident could not have been averted, then we would be of the opinion that the defendant was not liable. The facts of this case are that the engineer did see the horse running diagonally across the pasture towards the crossing. He remarked to the fireman, "That boy will drive his stock upon the track." The engineer then had knowledge of the fact that the horse was running towards the track, and, from the course they were going, they would probably...